DIWAN SINGH Vs. BHAIYA LAL

JUDGEMENT

(1.) In the course of deciding the above second appeal on merits the learned single Judge (Dr. T. N. Singh, J. as he then was) thought that the law with regard to the applicability of Mitakshara School of Hindu Law to the newly formed State of Madhya Pradesh has not been specifically laid down with regard to different integrating units of the State of Madhya Pradesh in Full Bench decision in the case of Ramdayal v. Manaklal, AIR 1973 Madh Pra 222. The learned single Judge, therefore, in the instant appeal arising from a Civil suit concerning parties residing in Ashok Nagar in District Guna has referred the following questions for being answered by Full Bench:-1) Whether it is necessary to plead in specific terms by the party claiming benefit of any particular school or branch of Mitakshara System of Hindu Law that he is governed by that School of Law and the Court cannot take judicial notice of territorial application of any particular School of Law?2) Whether in the erstwhile Madhya Bharat region of the present State of Madhya Pradesh Banaras School of Hindu Law is administered and applicable to parties residing in any part of the region and any sale by a coparcener without consent of other coparceners made in respect of his own share in the coparcenary property would be null and void in its entirety and will not be saved even to the extent of the share sold?

(2.) After hearing the learned counsel Shri Arun Kumar Mishra appearing for the appellant and after persuing the order of reference of the learned single Judge dated 25-8-1992, at the outset, this Full Bench (consisting of three of us) cannot resist from expressing doubt whether in fact there was any necessity for the learned single Judge to make a reference of the two questions referred expressing a desire that it be decided by the Bench consisting of five Judges. Before expressing our opinion on the two questions referred it would be necessary to examine the State of Law on the subject of applicability of a particular School of Hindu Law to a particular region in the newly formed State of Madhya Pradesh. It would also be necessary after examining the State of Law whether the Full Bench decision in the case of Ramdayal (AIR 1973 Madh Pra 222) (supra) of the three Judges of this Court has created any uncertain situation and it needed an exposition or clarification. The Law with regard to the right of alienation by coparcener in different Schools of Mitakshara Hindu Law is to be found in the commentaries of Mulla and N. R. Raghavachariar. In commentary of Raghavachariar, sixth edition in S. 272 the Law stated is as under:-

(3.) The above statement of law has not in any manner been unsettled or doubted by the Full Bench in the case of Ramdayal (AIR 1973 Madh Pra 222) (supra). Before the Full Bench the question that was raised for decision was entirely different. The question therein was with regard to the rights of the purchaser, in equity, if any, from a coparcener of his undivided share in the joint family property. While deciding that question in paragraph 3 the Full Bench had stated the law as under:-